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Immigrant Visa Processing:
Consular processing may be used when an individual is outside of the US or is ineligible to adjust status, or when a person prefers consular processing at the consulate for strategic or convenience reasons.
In order to be processed through the consulate the Approved I-130/I-140 petition is forwarded to the National Visa Center (NVC). The NVC reviews documentation and sends out the "Instruction Package for Immigrant Visa Applicants," and where appropriate, a subsequent "Follow-Up Instruction Package for Immigrant Visa Applicants." The NVC will forward petitions and accompanying documents to the consular post designated on the petition. The address of the NVC is:
National Visa Center
32 Rochester Avenue
Portsmouth, New Hampshire 03801-2909
603-334-0700, fax 603-334-0759
Usually the place of last residence abroad, not country of nationality is the designated place.
U.S. consulates in another country may take the case if the alien is in the U.S. and will experience hardship if required to return to residence. Also, additional workload at consulate is acceptable reasoning for hardship. When hardship is clearly demonstrated, consulates are encouraged to accept the case.
Conditions and requirements for application at consular post:
- Generally, if the applicant has been in the U.S. for 6 months of 1 year after April 1, 1997, he or she will be barred from the U.S. for 3 to 10 years respectively. Limited waivers are available.
- Applicant has the burden to prove he or she is eligible not withstanding approved petition.
- Must prove he or she is not inadmissible on any INA grounds.
- Must enter the U.S. within 6 months of issuance.
- Consuls Return of Petition to the INS.
- Police certificates are no longer required for the time the applicant resided in the U.S., country of nationality or residence if it was less than 6 months, or for all other residences if they were less than 1 year.
- Affidavit of support (I-824) with more binding, detailed, and stringent requirements is now mandatory.
- Must include copies of tax returns filed iwth IRS over the previous 3 years if employed in the U.S.
- Must have medical exam performed by doctor overseas. Also, facts learned by doctor can be used to deny admission.
- Must undergo Name Check procedure.
- Must undergo Homeland Security Act Procedures.
Non-Immigrant Visa Processing:
This is a two-step process. First, the applicant must seek to obtain a visa at the U.S. consulate or embassy unless he or she is visa exempt. The applicant must present himself at the embassy or consulate and submit an DS-156 form. After obtaining the visa the client may be admitted into the U.S. at the border or pre-flight inspection station by an CBP officer. If admitted he or she will be given an I-94 card. This card will govern the terms of his/her stay in the U.S. If entry is denied, the non-immigrant may be put to exclusion proceeding to remove him/her from the U.S. If a consular post has issued a visa, however, it is prima facie evidence of admissibility sufficient to shift the burden of producing evidence to the DHS at an exclusion hearing where admissibility is questioned.
If the Consular officer denies a visa he or she "shall provide the applicant a timely written notice" that states the basis for the determination and lists the specific provisions of law. However, the Secretary of State may waive this provision in regard to any individual or class of inadmissible persons, and the provision does not apply to removal orders under the INA. The Department of State continues to require posts to explain the reason for denial of an applicant.
Those who are filing under H, L, K, O, P, or Q status need prior approval at CIS Service Centers of petitions before applying at a consular post. When an approval notice is lost or when there is a desire to notify a new U.S. Consulate about an approval, a duplicate approval notice is requested on an I-824. F, M, and J status need certification from school/ program sponsor.
Generally, an applicant is required to go to the consular office of his/her residence, and the applicant must make a personal appearance unless waived. However, all consular posts can issue non-immigrant visas. In addition, if a non-immigrant overstays he or she must return to the consular officer in the country of his/her nationality unless extraordinary circumstances are found to exist by the Secretary of State.
In order to enter the U.S., the applicant not only needs a valid visa, unless exempt, but also needs a passport valid for 6 months beyond the expiration date of the visa, unless there is an agreement between the U.S. and the applicant's home country. An applicant for an admission may have his/her visa in an invalid passport if it is a multiple entry definitive visa and he or she is in possession of a valid passport.
Expediated border crossing is available to individuals with business or visitor status under certain conditions. For example, the INS Passenger Accelerated Service Systems (INSPASS) has been established for individuals who travel often to the United States. Sinilarly, the NEXUS and SENTRI programs are available for crossings between the U.S. and Mexico, and the U.S. and Canada, respectively.
Appeals and other Immigration Court Services
The Board of Immigration Appeals (BIA) has jurisdiction in the following matters:
- Final decisions of immigration judges in the form of exclusion, and deportation case, except length of time of voluntary departure.
- Final decisions of Immigration Judges in removal cases except: (1) where the sole ground is the length of time voluntary departure or when (2) there is an absentia (3) or an order of removal entered in absentia.
- Decisions on cancellation of removal applications in removal proceedings and decisions on former applications raised in deportation or exclusion proceedings, but not decisions before the district director.
- Decisions involving fines, penalties, and mitigation of them;
- Decisions for all preference petitions, and revalidation and revocation of those petitions. However, jurisdiction extends only to discretionary revocation and BIA has no jurisdiction to hear appeals of a beneficiary.
- Determinations relating to bond and detention in removal, except for persons deemed inadmissible, and determinations relating to bond and detention in deportation, but not in exclusion.
Decision on adjustment of status are made by the Immigration Judge:
In order to appeal the decision of an DHS Service Officer within the jurisdiction of the Board of Immigration Appeals (BIA), the appeal must be filed on form EOIR-26 within 30 days of the decision. The appeal is filed with the DHS office rendering the decision and not with the BIA.
Review by the Administrative Appeals Office/Regional Commissioner
The AAO/RC has jurisdiction concerning decisions on matter such as bond breaches, I-140 preference petitions (excluding those petitions that are denied based on a lack of a labor certification), Indochinese application for adjustment of status, revoking approved petitions under certain circumstances, applications for permission to reapply for admission into the US after deportation or removal, applications for waiver under certain grounds of excludability waivers, petitions for temporary worker trainees, fiance(e)s, applications for reentry permits, applications, for refugee travel documents, application for adjustment of status of certain legal permanent residents to non-immigrants, applications related to naturalization, Amerasian Petitions, revocation of non-immigrant petitions, orphan petitions, application concerning temporary or permanent residence, petitions for certain juveniles and application for adjustment based on the bona fide marriage exception concerning two year foreign residency.
This body does not conduct review of denial of extension of stay or change in non-immigrant status.
NOTICE OF APPEAL AND BRIEF
The moving party has thirty days after service of the decision to file a notice of appeal to the AAO/RC. Three days are added if the notice is served by mail. The appellant may file a brief with the notice of appeal. The appellant must make a request for an oral argument if desired in writing with the notice of appeal. If the applicant is able to show good cause, they may they may get an extension to file a brief by application to the AAO. Where the appellant did not receive the decision or notice of the right to appeal, the district court reinstated 30 day appeal period to give petitioner the right to appeal bond breach to the AAO.
The petitioner, not the beneficiary may appeal only. A notice of appeal may be accompanied by a properly completed G-28 form by the petitioner, payment of the filing fee, filled out I-290 form. The obligor on bond may appeal, not the bonded alien.
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